Court spoke eloquently on Baby Pendo case

An overwhelmed Lencer Achienga, mother to Baby Samatha Pendo testifies in an inquest seeking to establish the killers of her six months old daughter at Kisumu Law courts on February 19, 2018. Baby Pendo was allegedly killed by police officers at the height of post-election violence in August last year. PHOTO/ONDARI OGEGA

What you need to know:

  • Baby Pendo’s judgement on the Inquest No.6 of 2017, in the matter of Baby Samantha Pendo, written by Ms Beryl Omollo, the presiding magistrate is a literary piece of skilful writing.
  • It was established that some medics, who ought to be bound by the Hippocratic Oath, coldly put profit before life.
  • The behaviour of the regular police and the paramilitary General Service Unit (GSU) has never been anything to write home about, but clobbering a toddler, in full glare of her mother, was violence beyond measure.
  • In her summation, the magistrate argues further – ''The evidence adduced before this court is so clear on how the deceased encountered her death.

I have just finished reading the judgement on the inquest of Samantha Pendo, the six-month-old baby who was clobbered to unconsciousness by baton-wielding, trigger-happy menacing cops in the lakeshore town of Kisumu.
I am not a connoisseur of court judgements – many of them are written in boring legalese, trapped in their jargon-laden logic and Latinate reasoning. You would really need to have the patience and sobriety of a Philippine’s judge, to plough and pore through the dense maze of these judges’ labyrinthine writing.

WELL PUT

But Baby Pendo’s judgement on the Inquest No.6 of 2017, in the matter of Baby Samantha Pendo, written by Ms Beryl Omollo, the presiding magistrate is a literary piece of skilful writing. Shorn of jargon, the judgement sets upon itself in clear, concise and unpretentious language to explain and investigate, the circumstances that led to the death of an innocent, harmless being.

From the introductory sentence, the reader is immediately attracted by the powerful call to examine the circumstances of the unfolding events: ''The 11th day of August, 2017, is a day that will live in infamy.'' Crisp. precise. short and simple. The sentence could as well have been crafted by a great literary writer announcing the emergence of a great novel – only that the events described by the magistrate are too real to be imaginary.

In investigating the matter of the death of an infant, hardly out of its mother’s bosom care, and just two days after the country had a fractious presidential election, the magistrate invites the reader to walk with her, as she probes in minute detail the final events that led to that death.

The magistrate is not only a skilled investigator, but she is also an excellent reporter: ''The actions of the police officers deployed to protect life and property at Kilo Junction of Kisumu’s Nyalenda low-income settlement grotesquely caricatured Kenya’s claim to being a modern constitutional and democratic state.''

Without mincing words, Ms Omollo's judgement is a harsh indictment on Kenya’s disciplined forces, especially the National Police Service (NPS) and some of its medical institutions. The behaviour of the regular police and the paramilitary General Service Unit (GSU) has never been anything to write home about, but clobbering a toddler, in full glare of her mother, was violence beyond measure.

Likewise, for a hospital to refuse to admit a baby in comatose for failure by parents to raise Sh1500 as commitment fees is a testament on how lowly we have sunk as a society as we pursue neo-liberal cultural values. “Some medics, who ought to be bound by the Hippocratic Oath, coldly put profit before life and the plight of Baby Pendo, when she first sought help at a nearby private health facility,” wrote the magistrate.

Pendo, clutching her mum’s bosom, was confronted by “a posse of about eight policemen who were well-kitted in police uniform,” observed Omollo. She was hit by the truncheon-wielding policemen several times. The health facilities, in Ms Omollo’s view, were complicit in Baby Pendo’s death.

DENIED ADMISSION

As her parents, rushing against time, sought to keep their baby alive, one hospital in the upmarket Milimani Estate could not admit her, until her parents paid Sh1500: ''…in an act that would put a faithful disciple of Florence Nightingale to shame, the medics on duty demanded KSh1500, a consultation fee upfront, in order to attend to a badly injured Baby Pendo.''

Writes magistrate Omollo:

The cruel death of Baby Samantha Pendo, therefore, indicts many – some who appeared before this court and others who didn’t, because a judicial inquiry of this nature, a public inquest has a narrow remit and must confine itself only to establishing, if any, criminal liability and professional negligence only on the part of the Kenya Police, given the preponderance of the evidence adduced before court during the inquest.

The magistrate is very clear in her mind that there were sins of commission and omission that were committed by members of the Kenya disciplined force and some section of the medical fraternity in refusing to admit a sick person in lieu of advance payment. ''It was a day, when a distraught helpless mother and a severely injured six-month old infant, could neither count on the police officers at the scene of the incidence, who ought to be bound by the dictates of Constitution and the law, nor on some of the medical officers... to lend them a helping hand.''

''The court opines,'' argues magistrate Omollo in the judgement report, ''that the deceased baby was highly at risk when the police exercised their operations in Kilo Junction of Nyalenda Estate and as such, they ought to have been more cautious to protect her life.''

In her summation, the magistrate argues further – ''The evidence adduced before this court is so clear on how the deceased encountered her death. Section 203 of the penal Code provides that “…any person who of malice aforethought causes the death of another person by unlawful act or omission is guilty of murder.''

The magistrate said, ''During the inquest hearing, I found the respective testimonies of Prosecution Witnesses (PWs) 1–6 and 8–10 candid, their narration of events seamless and cogent.''

In her call to judicial authorities, who are supposed to now prosecute the well-laid case, the magistrate ably presents her findings by pointing out the following:

I am well guided by the legal principles that the doctrine of command responsibility is ultimately predicted upon the power of the superior to control the acts of his/her subordinate…the superiors (therefore) should incur liability for the subordinates’ unlawful conduct by failing to take any action to redress the situation.

Mr Kahura is a senior writer for 'The Elephant', a Nairobi-based publication. Twitter: @KahuraDauti

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